Comment by saudioger
8 years ago
I very strongly disagree with applying the First Amendment protections to data hosted on private infrastructure. 4chan more or less takes the "free speech" approach and it's a goddamned disaster.
People honestly can't even handle free speech in real-life, let alone anonymously on the internet. We literally have to create barriers around Planned Parenthood because people use free speech to berate women who are already suffering.
Speech needs to be protected, but when it starts to encroach on my pursuit of happiness it's a problem. Facebook, Twitter, etc don't need to become chan sites.
First amendment jurisprudence, thankfully, disagrees with you. But first, some history.
For most of modern history, speech has been censored in some form or another by governments. Naturally so, as any kind of divergent thinking can be dangerous to power structures (this hasn't gone away). In 1663, John Twynn, was tried and executed in England for printing material that suggested that perhaps the monarchy should be beholden to the people. The Sedition Act of 1798 was passed by the American Congress and signed into law by President John Adams. Namely, it prescribed fines and imprisonment for those who "write, print, utter, or publish... any false, scandalous and malicious writing" against the government. This was used to jail several members of Congress, among others.
Modern free speech jurisprudent didn't start to develop until as late as 1917. The Espionage Act of 1917 was enacted at the start of World War I to prevent actions that were seen as unfavorable to the war. The Supreme Court upheld the law as not violating freedom of speech in Schenck v. United States. I believe there was a subsequent 1917 or 1918 case that began to turn the tide (the reference escapes me at the moment and I'm at work), but it wasn't until 1969 in Brandenburg v. Ohio that the Supreme Court ruled that inflammatory speech is protected as long as it satisfies a two-prong test:
1. The speech is "directed to inciting or producing imminent lawless action," AND 2. The speech is "likely to incite or produce such action."
The case concerned an Ohio Ku Klux Klan member who was recorded saying particularly horrid and denigrating things about African Americans, but, notably, nothing specifically threatening. The Supreme Court upheld your right to say things like "I think we should kill all Jews" because, although a terrible thing to say, statements like that aren't imminently encouraging lawless action and not likely to do so.
Past that point, the Supreme Court has regularly upheld this interpretation of the first amendment. The best argument against a more European, say, interpretation of the first amendment is that, simply: governments only ever censor speech that they don't like. That's why the Espionage Act was used to incarcerate the likes of Emma Goldman and not, say, the people who were helping organize lynchings. If you were to enact hate speech legislation, and history bears this out, the people most affected are the minorities: black people, Jews, Muslims, LGBTQ people, pacifists, communists, anarchists, socialists, etc. Think about all of the police that shoot unarmed black men. Can you seriously imagine police forces across America protecting the speech of someone that calls for the abolition of the institution that person belongs to?
So that's a brief history and law lesson (caveat: I am neither a lawyer nor a historian). This is certainly a larger discussion to have, and I very much enjoy debating things like hate speech legislation and speech restriction in general, but I'll leave you with this for now.
None of this is relevant to whether Twitter want to be complicit in publishing this speech which they are under no obligation to do.
Edit: I'm also wondering why the great examples of free speech that people reach for are always racism. It's not really surprising that racism is allowed in a country founded on racism. It might be more interesting to look at what has actually been banned in American free speech law over the years.
The "ag-gag" laws that were recently overturned are one thing I'm thinking of. https://en.wikipedia.org/wiki/Food_libel_laws are another.
> None of this is relevant to whether Twitter want to be complicit in publishing this speech which they are under no obligation to do.
Grandparent was arguing that people can't handle free speech and that:
> Speech needs to be protected, but when it starts to encroach on my pursuit of happiness it's a problem. Facebook, Twitter, etc don't need to become chan sites.
I hear this a lot, particularly from the left (although the right does it too), on the grounds of protecting people from "harmful" speech. I disagree with that, which is why I responded, because I don't think enough people know about the modern interpretation of free speech and the long, storied history it has (not just in the US but everywhere). I certainly had no idea before I started reading.
> I'm also wondering why the great examples of free speech that people reach for are always racism.
It's not that they're examples, it's that the landmark Supreme Court cases that established our modern understanding of free speech typically involved the KKK and nazis (c.f. National Socialist Party of America v. Village of Skokie). In other words, people with horrible beliefs are the only reason why you can stand on a street corner and preach about socialism, communism, anarchy, etc (which might be "horrible beliefs" too, depending on the individual). 100 years ago, someone distributed a gentle poem by a socialist and was put in jail, and it was legal. Do you want to go back to that? Because it is absolutely possible.
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